With House Bill 1325, an agriculture farm bill, the Texas Legislature inadvertently changed the definition of marijuana. In an effort to legalize hemp farming, lawmakers created a distinction between hemp and marijuana. Hemp is now defined under the new law as cannabis with less than 0.3 percent of THC—a chemical named tetrahydrocannabinol that produces marijuana’s psychological effects.

While potential hemp farmers have embraced the profit-making legislation, Texas prosecutors are scrambling to deal with the unintended consequence of that legislation—namely; crime labs across the state can test for THC but lack the forensic ability to determine a specific amount of the chemical. That means the hemp farming legislation has effectively made it impossible to prosecute marijuana possession cases.

Is it Marijuana or Is it Hemp?

The Texas Tribune reports the legislation had an unforeseen consequence when it comes to prosecuting marijuana cases. “An unintended side effect of the law is that it has made it difficult for law enforcement to tell if a substance is marijuana or hemp, according to prosecutors. Among other provisions, House Bill 1325 changed the definition of marijuana from certainparts of the cannabis plant to those parts that contain a higher level of tetrahydrocannabinol, the psychoactive ingredient in marijuana that produces a high. It’s a difference numerous district attorneys, the state’s prosecutor’s association and state crime labs say they don’t have the resources to detect, weakening marijuana cases where defendants could claim the substance is instead hemp.”

The Texas Department of Public Safety says none of its labs possess the equipment necessary to determine the amount of THC in a substance, neither, apparently, do any of the crime labs in Texas.

Colleyville criminal defense attorney Colin McLaughlin told CBS11 that, “with many laws there are unintended consequences. This law is absolutely no exception.”

Another unintended consequence is that chiefs of police throughout the state have been forced to meet with the local district attorney’s office to determine how to proceed in the future with marijuana possession cases.

Marijuana Prosecutions Halt in Dallas, Harris and Tarrant Counties

The Houston Chronicle reported on July 1, 2019 that Harris County District Attorney Kim Ogg recently announced that her office plans to dismiss more than two dozen misdemeanor marijuana cases and will not be filing any more such cases.

Michael Kolenc, a spokesman for Ogg’s office, told the newspaper that, “The Legislature essentially changed the definition of marijuana with this legislation.”

“I get the potential financial benefit and we want that to happen. It’s just that this has now created a challenge: What do we do when what was marijuana on the 9th was no longer marijuana on the 10th?”

Speaking for the Texas District and County Attorneys Association, Shannon Edwards, the Association’s director of governmental relations, has no answer to that question. Prosecutors across the state, he said, are trying to develop the right course of action to deal with the legislature’s humongous mistake.

Prosecutions Continue in Montgomery, Galveston and Grimes

The Chronicle reported that district attorneys in Montgomery, Galveston, and Grimes counties have decided on their own course of action—they will continue to file criminal charges in these cases.

The Chronicle succinctly pointed out how the legislature stumbled into this mistake:

“Even though Texas lawmakers decided this session not to reduce the penalties for low-level marijuana possession, both chambers pushed through two key cannabis bills: one to broaden the state’s medicinal cannabis program to include conditions such as cancer and multiple sclerosis, and the other to legalize and regulate hemp.

“But the issue of testing THC levels didn’t attract the attention of criminal justice policy wonks and barely came up during public hearings on the hemp bill, which were held by the House and Senate agriculture committees but not committees that handle changes to the criminal code.”

David Sloane, an attorney for the National Organization for the Reform of Marijuana Laws, told CBS11 that if he were a prosecutor, he would not proceed in marijuana possession cases unless crime lab tests could precisely determine the level of THC, but warned that charges in dismissed cases could be re-filed if a specific THC test emerges.

In a June 25, 2019 report, Vox news said that “fourteen states have decriminalized but not legalized it. In these states, possession of small amounts of pot no longer carries jail or prison time but can continue to carry a fine, and possession of larger amounts, repeat offenses, sand sales or trafficking can still result in harsher sentences.”

It would seem that the Texas Legislature has inadvertently, although effectively, put this state in a similar position, at least until testing equipment can be acquired and certified. Criminal charges should not be filed in possession of marijuana cases in which the THC level cannot be determined. Prosecutors reluctant to dismiss marijuana cases stress they could still proceed on such cases after testing becomes available.

Our one question is this: why didn’t Gov. Abbott, a former Attorney General for this state, and see the obvious defect in the law when he approved the hemp legislation last month? As a former prosecutor, he should be aware of crime lab protocols for testing THC.

Criminal defense attorneys will certainly keep their eyes focused on this shifting landscape.